Illinois Cases November 05, 2021: Parys v. The Ill. Workers' Comp. Comm'n

Case Description

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This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Cook County Nos. 2020 L 050308 Honorable John J. Curry, Jr., Judge, Presiding.

JUSTICE HOFFMAN delivered the judgment of the court. Presiding Justice Holdridge and Justices Hudson, Cavanagh, and Barberis concurred in the judgment.

ORDER

HOFFMAN, JUSTICE

¶ 1 Held: We conclude that the Commission's decision finding that the claimant failed to prove that she suffered a work-related accident is against the manifest weight of the evidence; and we, therefore, reverse the judgment of the circuit court confirming the decision of the Commission, reverse the decision of the Commission finding that the claimant failed to prove that she suffered a work-related accident on

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December 2, 2017, and remand this matter to the Commission for further proceedings.

¶ 2 The claimant, Zofia Parys, appeals from an order of the circuit court of Cook County which confirmed a decision of the Illinois Workers' Compensation Commission (Commission), finding that she failed to prove she sustained accidental injuries on December 2, 2017, that arose out of and in the course of her employment with Rich's Fresh Market (Rich's) and denying her benefits pursuant to the Illinois Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2016)). For the reasons that follow, we reverse the judgment of the circuit court confirming the decision of the Commission, reverse the decision of the Commission finding that the claimant failed to prove she suffered a work-related accident on December 2, 2017, and remand this matter to the Commission for further proceedings.

¶ 3 The following recitation of the facts relevant to a disposition of this appeal is taken from the evidence adduced at the arbitration hearings held on April 19, 2018, and May 15, 2018.

¶ 4 The claimant's medical treatment prior to the events giving rise to this action are relevant to the issues in this appeal. On December 21, 2014, the claimant had three episodes of "near-syncope" with hyperventilation. Her medical records also reflect that she had a history of hypertension for which she was prescribed Amlodipine.

¶ 5 On March 10, 2015, the claimant sought medical treatment for left ankle pain resulting from an injury that had occurred 3 weeks prior. She also complained of hip and pelvis pain. The claimant had an EMG on March 19, 2015, which revealed acute bilateral L4-5 and L5-S1 radiculopathy which was noted to be chronic. There was no evidence of peripheral neuropathy. The test report noted a two-month history of left foot and ankle pain after twisting and falling on ice.

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¶ 6 On March 24, 2015, the claimant had an MRI scan that reflected a large sequestered L4-5 disc fragment causing severe compression of the thecal sac and probable compression of the left L5 nerve root. Also noted was a mild disc-osteophyte at L3-4 producing mild canal and mild bilateral neuroforaminal stenosis. The claimant saw Dr. Benson Yang on March 25, 2015, complaining of intractable pain in the left leg radiating into the ankle and foot. According to the doctor's records, the claimant's pain started in the low back. She reported that she was in extreme pain and could barely move. Dr. Yang recommended surgery, and on April 2, 2015, the claimant underwent a left L4-5 microdiscectomy, which was performed by Dr. Yang. A large, extruded disc fragment was noted at L4-5.

¶ 7 On April 15, 2015, Dr. Yang noted that the claimant reported almost full recovery of her left foot motor function and that her left leg pain had resolved. He also noted that the numbness the claimant was experiencing could take time to resolve and might be permanent depending on the amount of nerve damage she had suffered. In his notes, Dr. Yang also recorded the claimant's history of high blood pressure. The claimant, however, denied suffering from hypertension or currently taking blood pressure medication.

¶ 8 In his August 19, 2015 notes, Dr. Yang recorded the claimant's complaints of increased back pain for several weeks. The claimant reported that she was experiencing pain extending down her left leg when she flexes to put on socks, but the pain subsides when she straightens her leg. Dr. Yang was of the opinion that the pain the claimant was experiencing was musculoskeletal in nature. He recommended that the claimant undergo therapy and have an MRI of her spine. Dr. Yang also prescribed valium for pain.

¶ 9 In his notes of the claimant's December 30, 2015 visit, Dr. Yang recorded the claimant's

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complaints of back pain and that she reported feeling worse after physical therapy. His neurological exam of the claimant was normal. He also noted that the December 21, 2015, MRI of the claimant's spine, when compared to her March 24, 2015 MRI, revealed that the previously seen L4-5 disc protrusion had been removed with a remaining very small right protrusion with minimal encroachment on the thecal sac. The MRI also revealed a new disc protrusion at L3-4 with diffuse bulging, resulting in a moderate thecal sac encroachment on the inferior margins of the bilateral neuroforamina, slightly greater on the right. A new left sided pelvic cyst was also revealed by the scan. According to Dr. Yang's notes, the MRI showed degenerative disc disease at L4-5 greater than at L3-4. Dr. Yang's notes state that he discussed the possibility of the claimant having a spinal fusion, but that she rejected the suggestion at that time. Dr. Yang recorded an opinion that the back tightness and pain the claimant was experiencing was likely caused by her muscles. He recommended that the claimant exercise.

¶ 10 The claimant denied seeking treatment for back pain from December 2015 until December 2017.

¶ 11 The events giving rise to the instant litigation occurred on December 2, 2017. The claimant testified that she was employed by Rich's as a buffet worker and had been so employed since May 2015. She stated that, about 3 weeks prior to December 2, 2017, she was assigned to a substitute position as a food re-packer and labeler. According to the claimant, the position required her to unload and lift heavy items such as food pallets weighing 70 to 100 pounds multiple times in an 8-hour shift. The claimant also testified that she would weigh salads, place them in containers, place the containers on a cart, and place the containers either in the store or in a walk-in cooler.

¶ 12 On Saturday, December 2, 2017, the claimant was scheduled to work a normal shift from

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No. 1-21-0501WC 8:00 a.m. until 4:00 p.m. The claimant testified that, at approximately 10:00 a.m., she went to the cooler to get some salads; no cart was available for her use. She stated that she went into the cooler and picked up two boxes or crates when she felt a sudden back pain. She testified that there was no one else in the cooler at the time. According to the claimant, she dropped the boxes and screamed, but did not know if anyone heard her. She testified that she slid the boxes on the floor to her workstation, and when her back pain increased, she yelled out: "I'm in pain and cannot continue doing this." The claimant stated that her co-workers, Janina Kruzolek and Wanda Ostrowska came to help her, and she told them that she was experiencing back pain. However, she admitted that she did not say how it happened. The claimant testified that she asked Kruzolek to call the manager and told Ostrowska that she wanted to leave her workstation to tell the manager. According to the claimant, the manager, Anita Paluch, arrived, and she told Paluch that she hurt her back. She stated that Paluch never asked her how she hurt her back. The claimant testified that Paluch said that she could see that something was wrong with her, sat her in a chair, and advised her to call her daughter. The claimant testified that she called her daughter, Natalia Parys, and told her to come and pick her up because she had lifted some boxes and could not walk home. According to the claimant, Paluch was present when she called her daughter and overheard what she said. The claimant stated that her back pain worsened as she waited the 20 or 25 minutes before Natalia arrived. The claimant described how Paluch and Ostrowska helped her up and out of the store. The store video shows the claimant being supported from both sides by Paluch and Ostrowska. The claimant testified that Natalia took her home, helped her to the bathroom, and helped her to bed. She admitted that, despite her pain, she sought no medical treatment on December 2 or 3, 2017, as she believed that the pain would go away.

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¶ 13 Natalia testified that the claimant called her on December 2, 2017, and stated that she was in severe pain and asked her to come and pick her up. According to Natalia, when she arrived at Rich's, she was greeted by Paluch who escorted her to where the claimant was seated. Natalia testified that the claimant was pale and appeared to be in pain. She stated that the claimant pointed to her back and said that it hurt. She testified that she heard the claimant tell Paluch that she hurt her back but could not recall if the claimant stated how she hurt her back. Natalia stated that the claimant was unable to get up on her own and that she took the claimant home.

¶ 14 Kruzolek, Rich's kitchen manager and chef, testified that she saw the claimant between 7:30 a.m. and 8:00 a.m. on December 2, 2017. She described the claimant as pale with dry lips, moving slowly, and appearing weak and faint. According to Kruzolek, the claimant told her that she was feeling ill due to high blood pressure and that she had not slept well the night before. Kruzolek testified that she asked the claimant why she had come to work, and the claimant replied that she thought that she would feel better. Kruzolek stated that she checked on the claimant from time to time because she was aware that on a previous occasion the claimant left work in an ambulance due to high blood pressure. Kruzolek recounted a second conversation with the claimant who again stated that she did not want to go home. Kruzolek testified that she asked the claimant's manager, Paluch, to look at the claimant because she did not appear well. She stated that she was asked by Art Hajdus, one of Rich's managers, to prepare a written statement of her observations on December 7, 2017. That statement was consistent with her testimony. In that statement, Kruzolek wrote that the claimant often complained of high blood pressure, stating that it was a family problem. According to Kruzolek, the claimant never told her on December 2, 2017, that she had injured her back. Kruzolek testified that she wrote the statement in Polish and that it

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was later translated into English. She acknowledged that she was not in the cooler with the claimant on December 2, 2017, and that the claimant could have injured herself when she was not present.

¶ 15 Wladyslawa Trznadel, testified that she works at Rich's as a vegetable peeler and that she works in the same room as the claimant. According to Trznadel, she saw the claimant in the morning of December 2, 2017, at approximately 8:00 a.m. when they both started work. She testified that the claimant looked pale and that the claimant stated that she did not feel well but did not say why. Trznadel stated that the cooler was about 20 meters from her workstation and that she never heard the claimant scream on December 2, 2017. Trznadel testified that she never saw the claimant slide any crates or boxes on the floor. She did witness Paluch sit the claimant down in a chair and call her daughter. Trznadel testified that she never heard the claimant say that she had hurt her back on that day or that her back hurt. She stated that she observed the claimant working on December 2, 2017, and periodically saw her go to the cooler and bring back boxes and crates using a cart. According to Trznadel, the claimant did not appear to be in pain at any time when she came back from the cooler. Trznadel admitted that she could not see the cooler from her workstation and did not see the claimant while she was in the cooler. She testified that she had no knowledge as to whether the claimant was injured while in the cooler on December 2, 2017. Trznadel also gave a written statement in Polish that was translated into English. The written statement was consistent with her testimony. In that statement, Trznadel wrote that she had seen the claimant with the same problems on prior occasions and that she had to go home due to high blood pressure. Trznadel also wrote that the claimant had complained to her many times of having high blood pressure.

¶ 16 Ostrowska testified that she is employed by Rich's as a cook and that, on December 2,

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2017, she saw the claimant in the kitchen several times that morning. At approximately 10:00 a.m., she saw the claimant seated in a chair with Paluch and Natalia, the claimant's daughter, present. According to Ostrowska, the claimant did not look well, and she complained of a headache and feeling faint. Ostrowska testified that she did not hear the claimant complain of back pain either while she was seated or when she and Paluch helped the claimant walk to Natalia's car. Ostrowska admitted that she did not see the claimant while she was in the cooler and did not see her have an accident. Ostrowska also gave a written statement in Polish that was translated into English. The written statement was consistent with her testimony. Ostrowska wrote that the claimant often complained of having high blood pressure.

¶ 17 Eliza Zacharow, Rich's customer service manager, testified that she saw the claimant on December 2, 2017, at approximately 8:00 a.m. and that she he did not look well. According to Zacharow, the claimant had complained of hypertension on prior occasions. She testified that, other than that initial encounter, she did not see the claimant again on December 2, 2017, and had no knowledge as to whether the claimant was injured while working on that date. Zacharow also prepared a written statement in English. The statement was consistent with her testimony and also noted that when she spoke to the claimant on December 2, 2017, the claimant complained of a headache due to hypertension. Zacharow also testified that she was the person who had translated the other witnesses' statements from Polish to English.

¶ 18 Paluch testified that the claimant was sent home from work on December 2, 2017, at approximately 10:00 a.m. after complaining of high blood pressure. According to Paluch, this was not the first time the claimant had been sent home complaining of high blood pressure. She stated that the claimant often spoke about her hypertension that she had apparently inherited from her

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mother and that an ambulance was called for the claimant on two occasions prior to December 2, 2017. Paluch testified that, at approximately 9:00 a.m. on December 2, 2017, she was notified by Kruzolek that the claimant "feels bad again." She stated that, when she got to the claimant's workstation, she found the claimant standing and labeling soups. Paluch testified that the claimant told her that she had high blood pressure and that she had not slept the entire night before. According to Paluch, it was at that point that she told the claimant to sit down. She testified that the claimant did not tell her that she was injured lifting crates or report experiencing back pain, and she did not hear the claimant tell anyone else that she was injured while working or that she had a back problem. Paluch stated that there were three other employees in the kitchen at the time: Kruzolek, Trznadel, and Ostrowska. Paluch testified that she told the claimant to call her daughter and that the claimant's daughter, Natalia, arrive about 20 to 30 minutes later. According to Paluch, the claimant had to be assisted out of the store. In a written statement that Paluch wrote for Rich's insurance carrier concerning the events of December 2, 2017, she stated that the claimant "did not even tell me that she felt bad that day." According to her written statement, it was another worker that notified her concerning the claimant's condition. Paluch admitted that the claimant was assisted out of the store. The claimant denied telling Paluch on December 2, 2017, that she was having an episode of high blood pressure.

¶ 19 The claimant testified that, on Monday, December 4, 2017, Natalia took her to the office of Dr. Bohdan Dudas, her family physician. Dr. Dudas's notes of that visit state that the claimant reported acute low back pain and that she had "picked up big boxes of salads Saturday at work." She complained of low back pain, radiating to her left leg with spasms. Lumbar x-rays were taken that revealed stable mild to moderate spondylitic changes of the mid to lower lumbar spine with

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greatest involvement at L4-5 when compared to films taken in December 2015. The x-rays also revealed that the milder disc space narrowing at L3-4 and L5-S1 was unchanged. Dr. Dudas diagnosed a lumbar strain, prescribed medication, and placed the claimant on off work status. The claimant testified that Dr. Dudas referred her to Dr. Yang.

¶ 20 On December 6, 2017, the claimant presented to Dr. Yang. In his notes of that visit, Dr. Yang wrote that the claimant gave a history of having developed pain in her back 5 days earlier after lifting a heavy object at work. The claimant reported that her pain had improved but that she was still experiencing pain across her low back extending upwards, along with left outer foot numbness. Dr. Yang noted the claimant's 2015 L4-5 discectomy. He recorded that the results of his neurological exam of the claimant appeared normal. Dr. Yang's impression on examination was that the claimant had stable mild spondylitic changes of the mid to lower lumbar spine with the greatest involvement at L4-5. He diagnosed a herniated disc. In a separate note, Dr. Yang diagnosed lumbar disc displacement without myelopathy and a lumbar strain. He prescribed physical therapy for the claimant and held her off from work. He also noted that, if the claimant did not improve with therapy, she should have a lumbar MRI.

¶ 21 The claimant had the recommended MRI on December 29, 2017. The radiologist's report states that the scan revealed: a broad-based 4 to 5 mm L3-4 disc herniation with extruded pulposus and generalized spinal stenosis and neuroforaminal narrowing; a posterior and right sided 2 to 3 mm L4-5 disc herniation indenting the thecal sac with bilateral neuroforaminal stenosis, right greater than left, and discogenic endplate changes with loss of disc height; and a road-based 3 to 4 mm posterior L5-S1 herniation indenting the thecal sac with mild bilateral foraminal narrowing.

¶ 22 The claimant next saw Dr. Yang on January 5, 2018. The claimant reported some

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improvement in her symptoms with physical therapy and that her left knee pain had resolved. She still complained of low back pain radiating to her right side when she moved. Dr. Yang noted the MRI findings and wrote: "I continue to suspect her back pain is likely muscular in origin." He did not recommend a spinal fusion. He also noted that the claimant reported being uncomfortable if her legs were still, and he recommended that she see her primary care physician or a neurologist about restless leg syndrome.

¶ 23 On January 8, 2018, Dr. Dudas completed a form so that the claimant could obtain a disability placard from the Secretary of State. In that document, Dr. Dudas indicated that the claimant: cannot walk without an assistive device or human assistance; is severely limited in her ability to walk due to an orthopedic condition; and cannot walk 200 feet without stopping to rest.

¶ 24 The claimant was next seen by Dr. Dudas on January 9, 2018. The doctor's notes of that visit state that the claimant was crying and that she stated that her "life is completely different." She complained of constant low back pain with left leg radiculitis. Dr. Dudas noted that the claimant was wearing a back brace and was taking Amlodipine for high blood pressure. Dr. Dudas again recorded a history of the claimant having moved large boxes at work and having experienced a sudden onset of back pain on December 2, 2017. Dr. Dudas noted that "Dr. Yang will not operate " and recommended that the claimant get a second opinion from Dr. Clay. He again placed the claimant on off-work status.

¶ 25 Dr. Yang's January 9, 2018 notes state that Dr. Dudas had expressed concern that the claimant was in so much pain. Dr. Yang called the claimant's daughter and advised her that he would issue a prescription for the claimant to receive an epidural injection at L4-5. He noted that, if an epidural injection failed, a L3 to L5 fusion could be considered, the odds of success being

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50/50.

¶ 26 The claimant did not see Dr. Clay as recommended by Dr. Dudas; rather, on January 18, 2018, she saw Dr. Mark Sokolowski, an orthopedic surgeon. The notes of that visit reflect that the claimant gave a history of an onset of severe back and leg pain after picking up containers of soup and salad while working on December 2, 2017. Dr. Sokolowski's notes state that the claimant reported that she screamed for her coworkers and was helped to a chair in the managers office. She told him that physical therapy had provided some relief, but she still experiences severe low back pain. The claimant also reported that she had low back surgery in 2015 after which her symptoms improved, and that she was able to work for nearly 2 years thereafter until December 2, 2017. According to Dr. Sokolowski's notes, the claimant had a history of hypertension. Dr. Sokolowski reviewed the radiologist's report of the claimant's MRI, noting that it revealed moderate stenosis at L3-4 and a large left L4-5 herniation with relative protrusion of the disc height. Dr. Sokolowski found that the claimant's pre and post 2015 MRI's showed interval resolution of the L4-5 disc herniation. He diagnosed the claimant as suffering from lumbar pain and radiculopathy. He also noted his belief that, since the claimant had no symptoms for two years after surgery and her MRI showed resolution of the disc post-surgery, the work accident rendered her L4-5 disc changes and foraminal stenosis symptomatic, precipitating the onset of lumbar pain and radiculopathy. Dr. Sokolowski prescribed 4 more weeks of physical therapy and a Medrol dosepak for the claimant and recommended that she remain off of work until February 20, 2018. He noted that, if the claimant showed no improvement, the claimant should have an epidural injection at L4-5.

¶ 27 At the request of Rich's, the claimant was examined on January 29, 2018, by Dr. Babak Lami, an orthopedic surgeon. He testified that the claimant reported that she was moving boxes

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while working when she experienced back pain. He also testified that the claimant reported repetitive lifting of boxes as the cause of her pain but did not report a specific incident, either verbally or in her intake form. Dr. Lami stated that the claimant complained of back pain, pain in her left leg below the knee, and numbness. She also reported having undergone back surgery in 2015 and that she had a history of hypertension. Dr. Lami testified that he reviewed the claimant's medical records and found his neurological exam of the claimant to be normal. He diagnosed the claimant as suffering from low back pain without radiculopathy and left ankle pain. He also noted some residual numbness in her distal left leg. According to Dr. Lamie, the claimant's condition, both before and after her alleged accident, involved degenerative lumbar changes. He stated that the claimant's December 4, 2017 x-rays showed lumbar arthritis with no significant changes from her 2015 films. He stated that, even if the claimant had an acute lifting incident on December 2, 2017, it would have involved an acute back sprain, at most. Dr. Lami admitted that a lifting incident can aggravate a preexisting back condition but asserted that a strain and an aggravation of a preexisting condition are not the same. He acknowledged that Dr. Yang's post-surgical report of April 15, 2015, noted that the claimant reported no leg pain and only numbness on the left dorsal foot. However, he concluded that Dr. Yang's note of December 30, 2015, stating that he discussed the possibility of the claimant having a spinal fusion, suggested that her back condition had progressed post-surgery. Dr. Lami admitted that he found no records of any treatment for, or complaints of, bank pain following the claimant's August 18, 2015 visit with Dr. Yang until her December 4, 2017 visit with Dr. Dudas. He also admitted that he found no information reflecting that the claimant was unable to work during that time period but stated that because the claimant was able to work did not mean that she had no ongoing symptoms. Based upon his review of the

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claimant's post December 2, 2017 MRI, her subjective complaints, demeanor and behavior, Dr. Lami concluded that the claimant's complaints are out of proportion to her condition. He testified that: "I really didn't find an injury to her back given the amount of pain she reports, her objective findings on exam and her MRI." Dr. Lami testified that the claimant's December 2017 MRI did not indicate any acute findings. It did reveal degenerative changes from L3 to S1, moderate at L3-4, severe at L4-5, and mild at L5-S1. According to Dr. Lami, the claimant had no clinical condition related to an L3-4 herniation. Although Dr. Lami had not reviewed the actual films of the claimant's December 21, 2015 MRI, from the radiologist's report of that scan he found no difference from the results of the claimant's 2017 scans. Dr. Lami was of the opinion that the claimant was not a surgical candidate, she did not require further treatment as a result of the December 2, 2017 event, and she had reached maximum medical improvement.

¶ 28 The claimant next saw Dr. Sokolowski on February 20, 2018, and reported steady improvement in her symptoms with therapy. Dr. Sokolowski continued the claimant on off-work status through April 18, 2018, and advised her to continue with physical therapy to be followed by a work conditioning program.

¶ 29 Matt Morgan, a private investigator, testified that he was engaged to conduct surveillance of the claimant. He stated that, on February 23, 2018, he video taped the claimant. That video shows the claimant backing her car out of her garage at 11:19 a.m. and driving to a hair salon, arriving at 11:28 a.m. The video depicts the claimant walking unassisted and with no discernable limp from her car to the salon; a distance of approximately 83 feet. Morgan acknowledged that he did not observe the claimant while she was in the salon. At approximately 12:30 p.m., the claimant is seen exiting the salon and walking back to her car. The claimant then drove to Quest Physical

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Therapy (Quest), arriving at 12:41 p.m. She is seen exiting her car and walking into the facility unassisted and with no discernable limp. Morgan testified that he did not observe the claimant while she was in Quest. At approximately 1:51 p.m., the claimant exited Quest and drove to a TJ Maxx store. She parked her car and walked approximately 310 feet to the store. The claimant was in that store from 2:27 p.m. until 3:20 p.m. Morgan stated that he did not observe the claimant while she was in the store. The claimant admitted that, while she was in the store, she was either walking or standing. Upon exiting the store, the claimant returned to her car and is seen opening both doors on the passenger side of the vehicle and then leaning into the rear seat while standing on only her right leg. Morgan testified that, during the time that he observed the claimant, she did not appear to have any physical difficulties. He admitted that he could not always see the claimant's face or whether she was grimacing.

¶ 30 In a note dated March 13, 2018, Dr. Sokolowski wrote that the claimant had called requesting an urgent appointment due to increased back and leg pain. He advised the claimant not to begin work conditioning and prescribed a left L4-5 epidural injection.

¶ 31 On April 11, 2018, the claimant reported to Dr. Sokolowski that she continued to experience back pain, and he again recommended that she receive an epidural injection. Dr. Sokolowski's notes of that date indicate that he continued the claimant on off work status and ordered a functional capacity evaluation.

¶ 32 The claimant next saw Dr. Sokolowski on May 10, 2018, complaining of back and leg pain. According to Dr. Sokolowski's notes of that visit, the claimant had an antalgic gait and a positive left straight leg raise. He also noted that the epidural injection he recommended had not yet been authorized by Rich's insurance carrier. Dr. Sokolowski continued the claimant on off duty status,

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again recommended an epidural injection, and prescribed Tramadol. The claimant testified that Dr. Sokolowski also referred her to a pain specialist, Dr. Kurzydlowski.

¶ 33 Eric Flanagan testified that he is a vocational consultant and that he was retained to prepare a video job analysis of the claimant's job duties as a soup labeler and the tasks involved in moving soup from the cooler. He identified the video that he prepared. According to Flanagan, the buffet position at Rich's falls into the light physical demand category. He testified that he determined that a soup worker would lift crates 30 to 50 times during an 8-hour shift. He stated that the crates containing 15 soups weighed approximately 18 pounds. He admitted that he was not aware of any products other than soup being moved and did not weigh any other products at the store.

¶ 34 The claimant testified that her pain level fluctuates. She stated that she takes painkillers when needed, but that there are days when she does not require medication.

¶ 35 Following the arbitration hearings held on April 19, 2018, and May 15, 2018, the arbitrator issued a written decision on December 21, 2018, finding that the claimant failed to prove that she sustained accidental injuries on December 2, 2017, which arose out of and in the course of her employment with Rich's and denying her benefits under the Act. In that decision, the arbitrator noted that there was evidence in the record supporting the occurrence of an accident, including the claimant's medical records. The arbitrator found multiple inconsistencies in the testimony of the witnesses but concluded that the claimant was the most inconsistent. According to the arbitrator, the claimant testified that she did not have high blood pressure and was not taking medication for the condition; whereas, her medical records contain references to her hypertension both before and after December 2, 2017. The arbitrator also found that the claimant's testimony that she did not want to treat with Dr. Yang after her alleged accident because he did not speak Polish "did not

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make sense" in light of the fact that it was Dr. Yang who treated the claimant and operated on her in 2015. The arbitrator also found that the reasons that Dr. Dudas gave in support of the issuance of a disability placard were inconsistent with the evidence of the claimant's physical abilities as seen in the surveillance video. The arbitrator found that Rich's witnesses were consistent in their description of the claimant on the morning of December 2, 2017, and their testimony that the claimant, when asked what was wrong with her, indicated that the problem was hypertension. He also noted that, other than the claimant, Natalia, her daughter, was the only witness to testify that on December 2, 2017, the claimant said anything about a back problem or having hurt her back. The arbitrator determined that the "mechanism of accident itself is in question in this case in terms of whether the *** [claimant] was alleging specific or repetitive trauma." The arbitrator also found that the claimant's testimony that, after the alleged accident, she pushed crates across the floor with her legs and feet to her workstation "doesn't make sense" in light of her claimed back pain. The arbitrator found that the claimant was also inconsistent on the issue of whether anyone heard her scream. The arbitrator noted Dr. Lami's testimony that he found it unlikely that the claimant's back symptoms ended after December 2015 in light of Dr. Yang having discussed possible fusion surgery in December 2015. The arbitrator noted that the surveillance video shows the claimant performing activities with no significant distress "while her complaints to physicians paint a different picture of very severe back pain."

¶ 36 The claimant filed a petition for review of the arbitrator's decision before the Commission. On May 19, 2020, the Commission issued a unanimous decision affirming and adopting the arbitrator's decision.

¶ 37 The claimant sought a judicial review of the Commission's decision in the circuit court of

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Cook County. On May 19, 2021, the circuit court entered an order finding that the Commission's decision is neither contrary to law or against the manifest weight of the evidence and confirming the Commission' decision. On May 25, 2021, the claimant filed her timely notice of appeal.

¶ 38 In urging reversal of both the judgment of the circuit court and the Commission's decision, the claimant argues that the Commission's finding that she failed to prove that she sustained accidental injuries on December 2, 2017, which arose out of and in the course of her employment with Rich's is against the manifest weight of the evidence. We agree.

¶ 39 To obtain compensation under the Act, the claimant must establish by a preponderance of the evidence that she suffered a disabling injury that arose out of and in the course of her employment. Land & Lakes Co. v. Industrial Comm'n, 359 Ill.App.3d 582, 591-92 (2005). The question of whether a claimant suffered an accident while working is a question of fact to be resolved by the Commission, and its resolution of the issue will not be disturbed on review unless it is against the manifest weight of the evidence. Tolbert v. Illinois Workers' Compensation Comm'n, 2014 IL App (4th) 130523WC, ¶ 38.

¶ 40 For the Commission's resolution of a fact question to be contrary to the manifest weight of the evidence, an opposite conclusion must be clearly apparent. Id. ¶ 39. Whether a reviewing court might reach the same conclusion is not the test of whether the Commission's determination of a question of fact is supported by the manifest weight of the evidence. Rather, the appropriate test is whether there is sufficient evidence in the record to support the Commission's determination. Benson v. Industrial Comm'n, 91 Ill.2d 445, 450 (1982). In reaching its resolution of factual issues, it is the function of the Commission to resolve conflicts in the evidence, assess the credibility of the witnesses; assign weight to the evidence; and draw reasonable inferences from the evidence.

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ABBF Freight System v. Illinois Workers' Compensation Commission, 2015 IL App (1st) 141306WC, ¶ 19. However, we will not hesitate to overturn a factual determination made by the Commission when the clearly evident, plain, and indisputable weight of the evidence compels an opposite conclusion. Dye v. Illinois Workers' Compensation Comm'n, 2012 IL App (3d) 110907WC, ¶ 10.

¶ 41 In this case, the work-related accident alleged by the claimant was unwitnessed. The claimant testified that she suffered a back injury when she attempted to pick up two boxes or crates in the cooler while working on December 2, 2017. Each of the co-employee witnesses that testified in this case clearly stated that they were not in the cooler with the claimant at the time that she alleged that she was injured and testified either that the claimant could have injured herself at that time or that they had no knowledge as to whether she was injured as she alleged. The claimant's medical records reflect that she consistently gave a history of having experienced back pain when she attempted to pick up boxes or crates while working on December 2, 2017. She gave that history to the following physicians: Dr. Dudas on December 4, 2017, and on January 9, 2018; Dr. Yang on December 6, 2017, Dr. Sokolowski on January 18, 2018; and Dr. Lami on January 29, 2018. Contrary to the Commission's finding, there was no inconsistency on the issue of whether the claimant was alleging a specific or repetitive trauma. In every history she gave she asserted a specific trauma on December 2, 2017. The claimant was treated for lumbar pain and radiculopathy from December 4, 2017, through May 10, 2018, by Drs. Dudas, Yang, and Sokolowski, and the x-rays taken of the claimant's spine on December 4, 2017, and the MRI scan of her spine taken on December 29, 2017, both reflect that she suffers from a condition of low-back ill-being. Further, Dr. Sokolowski opined that the claimant's work accident rendered her L4-5 disc changes and

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foraminal stenosis symptomatic, precipitating the onset of lumbar pain and radiculopathy.

¶ 42 Clearly, there are inconsistencies in the claimant's testimony relating to her hypertension and there are unresolved issues relating to the nature and extent of her condition of low-back-ill-being, whether the claimant's current condition of low-back-ill-being is causally related to her alleged work-related accident of December 2, 2017, and notice. However, the fact that those issues are yet to be resolved does not detract from the claimant's unrebutted testimony of an unwitnessed work-related accident on December 2, 2017, and the consistent histories that she gave to her medical providers. Based upon the evidence in the record before us as set forth above, we conclude that the Commission's finding that the claimant failed to prove that she suffered a work-related accident on December 2, 2017, is against the manifest weight of the evidence as an opposite conclusion to that reached by the Commission is clearly apparent.

¶ 43 For the reasons stated, we reverse the judgment of the circuit court confirming the decision of the Commission, reverse the decision of the Commission finding that the claimant failed to prove that she suffered a work-related accident on December 2, 2017, and remand this matter to the Commission for further proceedings consistent with the opinions expressed herein. We express no opinions on the following issues: nature and extent of the claimant's condition of ill-being; whether there is causal connection between the claimant's work-related accident and her current condition of ill-being; notice; and whether, or to what extent, the claimant is entitled to benefits under the Act.

¶ 44 Circuit court reversed; Commission decision reversed and the matter remanded to the Commission.